Landers v. Robinson

• Decision Date: 03 December 2018
• Docket Number: Case No. 3:18-cv-175
• Parties: JOSHUA LANDERS, Petitioner, v. NORM ROBINSON, Warden, London Correctional Institution Respondent.
• Court: U.S. District Court — Southern District of Ohio

JOSHUA LANDERS, Petitioner, v. NORM ROBINSON, Warden, London Correctional Institution Respondent.

Case No. 3:18-cv-175

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

December 3, 2018

District Judge Walter H. Rice

Magistrate Judge Michael R. Merz

SUBSTITUTED REPORT AND RECOMMENDATIONS

This habeas corpus action is before the Court for decision on the merits. Upon initial consideration of the Petition, the Court ordered the Respondent to file the state court record and a return of writ (ECF No. 3) which has been done (ECF Nos. 6, 7, and 8). After extensions of time to do so, Petitioner has filed a Reply (ECF No. 27), rendering the case ripe for decision.

Procedural History

Joshua Landers was indicted by a Greene County grand jury on three counts of rape of a child under thirteen years of age and one count of attempted anal rape of the same victim. A first trial resulted in a hung jury. At a second trial the State moved to dismiss the attempt charge at the close of its case; the trial judge granted a defense motion to have the dismissal be with prejudice. The jury acquitted Landers on the first two counts but convicted him of anal rape as charged in Count Three. He was then sentenced to ten years to life imprisonment and classified as a Tier III sex offender.

Landers appealed to the Second District Court of Appeals which affirmed the conviction. State v. Landers, 2^nd Dist. Greene No. 2015-CA-74, 2017-Ohio-1194 (Mar. 31, 2017), appellate jurisdiction declined, 150 Ohio St. 3d 1411, 2017-Ohio-6964. Landers subsequently filed an application under Ohio R. App. P. 26(B) to raise claims of ineffective assistance of appellate counsel. The Second District denied relief on both procedural and merits grounds on August 21, 2017 (State Court Record (ECF No. 6, PageID 191-209).

Landers claims (Reply, ECF No. 27, PageID 849) he appealed to the Supreme Court of Ohio and attaches to his Reply a copy of the face sheet and table of contents of a Memorandum in Support of Jurisdiction and a copy of an Affidavit of Indigency, both captioned in the Ohio Supreme Court (ECF No. 27, PageID 883-86.) Each of these documents bears two "Received" stamps from the Clerk of the Supreme Court, one dated September 29, 2017, and one dated October 13, 2017. He presents no documents showing he "filed," in the Supreme Court of Ohio, merely that the Clerk received these documents on the dates shown. A search of the Supreme Court's database shows only Case No. 2017-0650 which was the direct appeal filed May 12, 2017, and in which the court declined to exercise jurisdiction. The Magistrate Judge concludes Landers never effectively filed an appeal to the Supreme Court of Ohio from denial of his Ohio R. App. P. 26(B) Application.

Because Landers procedurally defaulted his ineffective assistance of appellate counsel claims, he cannot rely on ineffective assistance of appellate counsel to excuse procedural default. Edwards v. Carpenter, 529 U.S. 446 (2000).

On May 21, 2018, Landers filed his Petition in this Court, pleading the following grounds for relief:

Ground One: Petitioner's right of Double Jeopardy was violated, as guaranteed by the 5th and 14th Amendment [sic], United States Constitution, because Trial Court granted State's Rule 29 motion to dismiss Count 4-Attempted Anal Rape, and failed to terminate prosecution against Petitioner on Count 3-Anal Rape charge.

Ground Two: Petitioner was deprived of right to Due Process of Law and a Fair Trial, as guaranteed by the 5th and 14th Amendment [sic], United States Constitution, where the Trial Court granted the State's Rule 29 motion at the conclusion of its case in chief.

Ground Three: Petitioner was deprived of right to Due Process, as guaranteed by the 5th and 14th Amendment [sic], United States Constitution, where Trial Court denied Defense motion for lesser included offense instruction of Attempted Anal Rape for Count 3 Anal Rape Charge.

Ground Four: Petitioner was deprived of right to Due Process, as guaranteed by the 5th and 14th Amendment [sic], United States Constitution, as State's evidence insufficient to support conviction.

Ground Five: Petitioner was deprived of right to Effective Assistance of Trial and Appellate Counsel, as guaranteed by the 6th Amendment of the United States Constitution, by Counsel's failure to bring constitutional issues to the State's Courts [sic] attention, that resulted in the wrongful conviction of an innocent man.

Ground Six: Petitioner was deprived of right to Due Process of Law and Fair Trial, as guaranteed by the 5th and 14th Amendment [sic], United States Constitution, due to Trial Court's permitting the State to introduce "other acts" testimony.

(Petition, ECF No. 1, PageID 5-14.

Analysis

Ground One: Double Jeopardy

In his First Ground for Relief, Landers contends his rights under the Double Jeopardy Clause were violated when the trial court dismissed Count 4, the attempted anal rape charge, without also dismissing Count 3 (Petition, ECF No. 1, PageID 5; ECF No. 1-1, PageID 20-21).

Respondent asserts this claim is procedurally defaulted because it could have been raised on direct appeal but was not (Return of Writ, ECF No. 7, PageID 250-51). Under Ohio law, a claim which can be adjudicated on direct appeal must be raised there or it is barred by res judicata from being raised in a subsequent proceeding. State v. Perry, 10 Ohio St. 2d 175 (1967). The Sixth Circuit has held that Ohio's doctrine of res judicata in criminal cases is an adequate and independent state ground of decision. Durr v. Mitchell, 487 F.3d 423, 432 (6^th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6^th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6^th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6^th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6^th Cir. 1994) (citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001) (Smith, J.).

On direct appeal, Landers raised this issue as a fair trial claim. His Second Assignment of Error stated "The trial court erred and thereby deprived Landers of a fair trial under the United States and Ohio Constitutions when it granted the State's motion to dismiss Count IV after its case in chief." State v. Landers, 2017-Ohio-1194, ¶ 71. The Second District found no error because the State had presented evidence of anal rape - actual penetration - but no evidence of an unsuccessful attempt at anal rape. Id. at ¶¶ 72-82. No argument whatsoever was made about Double Jeopardy.

As his Third Assignment of Error on direct appeal, Landers asserted "the trial court erred when it overruled Defendant's motion for a lesser included instruction." 2017-Ohio-1194, ¶ 83. The Second District analyzed this assignment in two steps. The first step was to determinethat, as Landers contends, attempted anal rape is a lesser included offense of anal rape; the court found this conclusion was not disputed. Id. at ¶ 86. The second step was to analyze the testimony to see if it supported the instruction. Because the victim testified to successful penetration, a lesser included instruction on attempt was not justified. Id. at ¶¶ 87-89. Here again, there is no mention of the Double Jeopardy Clause.

Nor is it the case that Landers sought relief on Double Jeopardy grounds but the Second District missed the issue: Landers's brief on appeal also includes no mention of the Double Jeopardy Clause nor does it cite any federal case law on that issue (State Court Record, ECF No. 6, PageID 68).

To preserve a federal constitutional claim for presentation in habeas corpus, the claim must be "fairly presented" to the state courts in a way which provides them with an opportunity to remedy the asserted constitutional violation, including presenting both the legal and factual basis of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6^th Cir. 2006); Levine v. Torvik, 986 F.2d 1506, 1516 (6^th Cir. 1993), overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6^th Cir. 1991). The claim must be fairly presented at every stage of the state appellate process. Wagner v. Smith, 581 F.3d 410, 418 (6^th Cir. 2009).

Merely using talismanic constitutional phrases like "fair trial" or "due process of law" does not constitute raising a federal constitutional issue. Slaughter v. Parker, 450 F.3d 224, 236 (6^th Cir. 2006) ; McMeans v. Brigano, 228 F.3d 674, 681 (6^th Cir. 2000), citing Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2^nd Cir. 1984); Franklin v. Rose, 811 F.2d 322, 326 (6^th Cir. 1987). Mere use of the words "due process and a fair trial by an impartial jury" are insufficient. Slaughter v. Parker, 450 F.3d 224, 236 (6^th Cir. 2006); Blackmon v. Booker, 394 F.3d 399, 400 (6^th Cir. 2004)(same). "A lawyer need not develop a constitutional argument at length, but he must make one; the words 'due process' are not an argument." Riggins v. McGinnis, 50 F.3d 492, 494 (7^th Cir. 1995).

If a petitioner's claims in federal habeas rest on different theories than those presented to the state courts, they are procedurally defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6^th Cir. 2006); Lorraine v. Coyle, 291 F.3d 416, 425 (6^th Cir. 2002), citing Wong v. Money, 142 F.3d 313, 322 (6^th Cir. 1998); Lott v. Coyle, 261 F.3d 594, 607, 619 (6^th Cir. 2001) ("relatedness" of a claim will not save it).

"[A] state prisoner ordinarily does not 'fairly present' a federal claim to a state court if that court must read beyond a petition or a brief (or a similar document)" to find material that will alert it to the presence of such a claim. Baldwin v. Reese, 541 U.S. 27, 32 (2004). When a defendant does so little to present his claim that it has not been fairly presented, then the presumption under Harrington v. Richter that the state court decided the claim on the merits is "fully rebutted." Johnson v. Williams, 568 U.S. 289, 302 n.3 (2013). On the other hand, when a federal claim is fairly presented but not...